Category: Volume 43 Page 1 of 2


Mens Rea and Constitutional Law: A Report Card for the Florida Supreme Court in State v. Adkins

This Article analyzes the Florida Supreme Court decision in State v. Adkins, 96 So. 3d 412 (Fla. 2012), and how each justice decided the issue. The Court set out to definitively decide a controversial issue involving Section 893.13 of the Florida Statutes, a law that arguably made drug possession a strict liability offense. However, no majority was reached; the Court was split into a three-justice plurality, with two concurrences and two dissents. A professor at heart, Batey analyzes the approach each justice took in reaching a decision and assigns them all grades based on the legal deduction, reasoning, and justification found in each opinion. Arguing that no real conclusion was reached to this difficult legal issue, Professor Batey explores the shortcomings in each justice’s interpretation of the law and how the issue should have been decided given each justice’s prior history and ideological views, as well as by the precedent set by the Court itself.

Piercing Pearson: Is Qualified Immunity Curbing Students’ Religious Speech Rights?

The First Amendment protects private discourse and individual contribution to the marketplace of ideas; it also limits the government’s ability to impose religious views on its citizenry, while promising to guard the peoples’ rights to practice the religion of their choice. These fundamental rights are focal points for extensive and controversial religious speech jurisprudence. The extent of these speech rights depends predominantly on who the relevant speaker is: the government may regulate its own speech but is hamstrung from endorsing religion, while private speech enjoys expansive constitutional protection and is not limited by the Establishment Clause. Identifying the speaker can sometimes be a difficult endeavor, however; one such example is of utmost concern to a large, yet distinct, subset of the population-public school students.

Accordingly, this Article focuses on student religious speech in public schools and the First Amendment’s protection thereof. This inquiry is informed by student speech jurisprudence, the axiomatic prohibition against viewpoint discrimination, and government avoidance of Establishment Clause violations. This complicated and oftentimes contradictory caselaw is troubling in its own right, yet is circumscribed even further by another major concern that inhibits students’ free speech rights-qualified immunity.

Qualified immunity protects government officials from civil liability under certain circumstances. This defense does not, however, protect a government official who infringes on a student’s (1) “clearly established” (2) “constitutional rights.” This two-prong test is meant to protect government officials’ reasonable discretionary actions. Of some concern, however, the Supreme Court has generally advised lower courts to reach the “clearly established” prong before the “constitutional violation” prong. This declaration has the potential to create a perverse institutional problem in the realm of student religious speech, where the law is threatened with a perpetual cycle of dismissal on qualified immunity grounds without a forum for establishing clear law to guide government officials and to protect students’ First Amendment rights.

A Coat of Many Colors: The Religious Neutrality Doctrine from Everson to Hein

This Article addresses how the neutrality principle has evolved over the course of a century and how this gradual evolution ultimately yielded a more relaxed definition of neutrality. More specifically, it explores the complex institutional interplay between government and religion to contend and find that the Supreme Court has come to abandon its traditionally restrictive approach to church-state cooperation in favor of a more permissive norm. Toward this end, it traces the development of the neutrality principle by reviewing the relevant case law and discussing the insights and reservations expressed by Supreme Court Justices on the use of public funds for sectarian purposes. Two basic conclusions appear to emerge from this framework of analysis. One is that the Court has traditionally interpreted the Establishment Clause in a highly strict and forceful manner to forbid the government from providing even nonpreferential aid to religion. The second is that the Court has all but rejected as unduly restrictive the 1971 Lemon Test to allow for a wider scope of government aid to sectarian bodies under the Establishment Clause.

Effectuating the TILA’s Purpose: Interpreting the Truth in Lending Act to Avoid Destruction of Consumers’ Rights under the Florida Consumer Collection Practices Act

After the Great Recession, many American consumers still find themselves deep in debt. Not surprisingly, the debt-collection market has grown into a billion-dollar industry. In Florida, creditors and collectors’ debt-collection activities are subject to the State’s consumer-protection statute, the Florida Consumer Collection Practices Act (FCCPA), which creates a barrier between collectors and debtors by prohibiting contact between them, including via billing statements, while a debt is in collection if the debtor is represented by counsel. An independent federal law, the Truth in Lending Act (TILA) also applies to certain debt collection activities, and it requires creditors to send certain disclosures on period billing statements to the consumer. The TILA does not create an exception for debtors represented by counsel. If these laws are determined to be in conflict, the Florida protective statute would be preempted. While Florida courts have not yet decided this issue, the Author proposes that the TILA can be harmonized with the FCCPA through an interpretation of the TILA that would allow creditors to comply with both the federal and state law. This interpretation is based on caselaw, federal authorities, and public policy, and the Author concludes that this harmonious interpretation is required for the laws to function as both were intended-to protect consumers.

Defending Florida’s Marine Treasures: An Argument to Expand the Public Trust Doctrine and Reinforce Florida’s Role in Coral Reef Protection

Widespread deterioration of coral reef ecosystems continues despite federal and state efforts to protect these valuable natural resources. This damage must be prevented not only for the sake of the reefs themselves, but also for the sake of humanity, which benefits from fishery sustainability, erosion prevention, recreation, and other vital services that reefs provide. After a brief review of the current federal and state programs that provide coral reef protection and an analysis of some “gaps” in reef protection, this Article suggests that the State of Florida has the ability to fill many of the gaps in protection. The Author proposes extending Florida’s common law public trust doctrine to include coral reefs and argues that such an extension would empower Floridians to enforce a State duty to protect corals.

Under the public trust doctrine, the State has an affirmative duty to manage its public trust resources in the best interest of its citizens. The Author explains that Florida, as a trustee under the doctrine, is required to consider the impact of its actions on public trust resources and prevent substantial harm to the resources. Floridians, as the trust beneficiaries, have the right to ensure that the State acts with care in its trustee responsibilities. The Author suggests that if the public trust doctrine’s scope extended to include corals, the keystones of coral reef ecosystems, Floridians could then enforce a State duty to protect coral reefs within State waters.

Although a public trust in corals could be established through statutory codification or common law means, this Article proposes expanding the doctrine’s application to corals through the common law. Because Florida’s common law public trust doctrine is deeply rooted in the concept of protecting public uses such as fishing and recreation, the Author argues that the doctrine could extend to include coral resources because of the services they provide to the public. Further, the Author suggests that because corals are so intimately connected to submerged lands, which are traditional subjects of public trust protections, this type of public trust expansion to wildlife may be more successful than previous attempts across the United States.

Finally, the Article presents a brief overview of the form of a public trust lawsuit to enforce State coral reef protection and addresses a few concerns with using the doctrine to enforce State protection of corals. The Author concludes by advocating for a reform of Florida’s public trust doctrine to include corals and an increase in State protection of valuable reef resources.

A Stuck Safety Valve: The Inadequacy of Compassionate Release for Elderly Inmates

This Article analyzes the growing population of elderly prisoners and the practical and policy challenges that one must understand to impact meaningful change for this population. The rise in the elderly inmate population creates new burdens on the prison system. Prisons struggle to provide adequate healthcare, compensate for mental health issues like dementia, and simply to maintain orderly prison programs when many inmates struggle to hear, see, or walk long distances. This Article argues that prisoners are entitled to reasonable accommodations under both constitutional and American Disabilities Act provisions. Additionally, this Article points to federal policy initiatives like the compassionate release program and argues that these initiatives create substantial hurdles, therefore making it unlikely that the elderly prison population will diminish in the future.

This Article ultimately calls for practical, low-cost remedies that can be established within prisons to manage the growing number of elderly prisoners. Essentially, this Article recognizes that prison systems are created for younger inmates, with inadequate training, planning, and implementation of elderly assistance initiatives. In response, this Article takes a practical stance in asserting that resources spent on implementing programs within the prisons, to include specialized housing, telemedicine, adequate staff training, and promotion of inmate assistant programs, will have a greater effect on surging numbers of elderly inmates than compassionate release.

Liability for Modification of Lands under Navigable Waters in Florida

This Article explores how Florida courts address inverse condemnation claims involving navigable water by analyzing the traditional elements of and standing requirements for a takings claim, as well as the limitations riparian landowners face when filing such a claim. This Article navigates the procedural and substantive issues of an inverse condemnation claim emphasizing how Florida courts have excluded certain rights by deeming them a noncompensable right under common law. Much of the value colloquially associated with having waterfront property is not anchored in compensable legal rights according to Florida law. Finally, this Article demonstrates how Florida landowners’ inverse condemnation claims are dead in the water when their property is physically under navigable water since the landowners cannot satisfy the requirements necessary for an inverse condemnation claim.

Do Code Enforcement Violations “Run with the Land”? Competing Interests of Local Governments and Private Parties and Their Constitutional Considerations in Code Enforcement Proceedings

The recent mortgage crisis-and the subsequent increase in property foreclosure proceedings-has left Florida’s real property law in a state of flux. Specifically, a rise in vacant or abandoned properties due to a decrease in home equity has led to a surge of municipal code violations, which affect a purchaser’s rights and duties related to a piece of real property. In light of a real estate practitioner’s duty to ascertain title and determine whether any judgments or leans exist against a seller’s real property before advising his or her client to purchase that piece of real property, these code violations have left practitioners wondering how to properly advise their clients during the purchase process.

This Article addresses numerous issues related to the treatment of code enforcement violations under existing Florida law. Specifically, it discusses whether code enforcement violations run with the land; whether homestead exemptions apply to attempts to enforce and collect code enforcement liens; how the “first in time, first in right” rule applies to duly filed and recorded code enforcement liens and mortgages that encumber the real property; what effect the Florida Supreme Court’s decision in City of Palm Bay v. Wells Fargo, N.A. should have on real property encumbered by a mortgage and code enforcement lien; whether unrecorded violations affect a current owner’s title to real property; whether code violations begin to accrue on a specific date and how long they last; whether the Due Process Clause of the Fourteenth Amendment of the United States Constitution and the Due Process Clause of Article I, Section 9, of the Florida Constitution compel notice of code enforcement proceedings to protected and interested parties beyond actual owners; and whether there should be one or more code enforcement proceedings in obtaining administrative finality. Addressing each of these open issues in turn, the Author provides a practical and workable understanding of a real estate practitioner’s duty when advising his or her client on the desirability of a real property purchase.

Thank You for Not Smoking … Indoors: The Confusing State of Local Government Smoking Regulation in Florida

The known harmful effects of second-hand smoke have caused an increase in smoking regulations in Florida over the past twenty years. In 1985, the Florida Legislature enacted the Florida Clean Indoor Air Act with the purpose of expressly preempting indoor smoking regulations promulgated by Florida municipalities to the State. In recent years, the Act’s preemption clause has caused confusion as to whether the State intended to preempt only indoor smoking or both indoor and outdoor smoking regulations. This Article explores the legislative history, recent caselaw, and attorney general opinions discussing the Florida Clean Indoor Air Act’s breadth of preemption in an effort to resolve the confusion.

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